现代法治视野下的调解

Mediation Under Modern Rule Of Law

调解指的是发生纠纷的双方当事人在第三方的主持下通过相互妥协达成一致而解决纠纷的一种方法;本文通过对调解的一般分析和个案分析,指出调解在解决纠纷方面的两个特征;其次,本文勾勒了现代法治的基本要求,指出调解与现代法治的冲突;最后本文指出,制度的形成和废除其实不是个别法学家说了算的,甚至也不是立法者说了算的,纸面上设计的制度在社会生活中未必就真的能实现,而纸面上废除的制度在社会生活中也未必就会消失。

Mediation means that under the third party＇s persuasion, both parties of the dispute sol.ve the problem through a compromise way. This paper, through analyzing general and individual cases, points out two characteristics of mediation in solving the dispute. And furthermore this paper sketches the basic demand of modern rule of law and designates the conflict between mediation and the modern rule of law. Finally, this paper indicates that the formation： or abolition of a system is not decided by the specific jurists, nor by the legislators. The system which is designed excellently on paper may not achieve its effect in social life while the system which is abolished on paper may not disappear in social life.